2nd ANNUAL ASSEMBLY OF THE WALA

2nd ANNUAL ASSEMBLY OF THE WALA Ciudad Real – Castilla – La Mancha 17th – 19th May 2009

POSSIBLE EXONERATION OF AIRPORT FROM LIABILITY FOR BIRD STRIKE DAMAGE Ciudad Real , 17 – 19 May 2009 Split Airport Split Airport – Croatia Ante Matijaca

L I A B I L I T Y Human aspect Financial aspect • Aircraft owner/operator is first party who may • suffer significant damage • Airport operator is first party to wich damage • compensation claim will be put

I N T R O D U C T I O N (1) Big & Small International & Local A I R P O R T S Public & Private Civil & Military Take-off, landing, parking D U T I E S Passengers, baggage and cargo handling

I N T R O D U C T I O N (2) LIABILITY FOR DAMAGE – Obligatory - legal relation in which one side is liable to repair damage caused to other side, and the other side is entitled to demand such reparation Contractual and non-contractual KIND OF LIABILITY Subjective and objective Proper liability and liability for others

L E G A L C A S E S

D E F E N D A N T S

ANSWER A QUESTION • What are the main reason why an airport operator • is the first who will be sued? TRY TO EXPLAIN • What are the possibilities of exoneration of airport • from liability in case of bird strike?

EFFORTS OF AIRPORTS (1) • -To carry out necessary inspection of runways, • taxiways, and other manoeuvring areas; • -To warn pilots about possible presnce of birds and • other animals at or in the vicinity of airport; • -To realise proper design, construction operation • and maintenance of airport areas and buildings; • -To implement proper manner of land use; • -To implement proper grass policy;

EFFORTS OF AIRPORTS (2) • -To implement proper manner of zoning in the • vicinity of airports; • -To use different kind of adequate scaring devices; • -To obtain certificates for: operation of airport, • airworthiness of aircrafts and construction of • engines; • -Activities on permanent improvement in • awareness of bird hazard; • -To ensure sufficient financial resources to take • necessary measures and activities;

EFFORTS OF AIRPORTS (3) • -To have various specialists and other educated • personnel at its premanent disposal; • -To realise timely and accurate communication • among all air traffic participants (airport • personnel, air traffic controlers and air carrier • personnel) in case of bird hazard or bird strike; • -To register all appropriate statistical dana, as well • as all other necessary records.

Omissions & Consequences Canadian Airport Wildlife Management BulletinNo. 23

In case of : - material damage • injury of persons or as a result of bird strike - death of persons lack of proper procedures lack of adequate bird control failure to take other activities AIRPORT OPERATORS L E G A L P R O C E E D I N G S

LIABILITY IN CIVIL AVIATION 1. AIR TRAFFIC PARTICIPANT LIABILITY - Airport operator • Chicago, Warsaw, • Montreal Convention • - National regulations - Aircraft operator - ATC agency 2. THIRD PARTY LIABILITY • Rome Convention (1952) • Montreal Protocol (1978)

Q U E S T I O N ? 26th International Bird Strike Committee Conference Warsaw, May 2003 If bird strike happens outside bounded and strictly determined airport area, who is than responsible for occured damage ?

RNW 05 Airport boundary m a r s h l a n d P A N T A N

EXCLUSION FROM LIABILITY AIRPORT LIABILITY CIVIL LAW ELEMENTS : 1. Prevention at or in the vicinity of an airport; 2. Successful defence; 3. Knowledge and experience of the judge in this matter; 4. Sufficient number of qualitative proofs.

QUALITATIVE PROOFS • To have all facts completely and correctly • established • To prove that everything that had to be done was • done, and eventual damage occured without the • fault of a defendant

= Airport operator shall not be liable for damage occasioned by bird strike if it proves that it had taken all available measures and activities that could reasonably be required to avoid that strike, or if it proves that it had been impossible to take such measures or activities, especially due to safety reasons. caused by BIRD STRIKE = EVENT EXTRAORDINARY CIRCUMSTANCES

The extraordinary circumstances justifying airport operator behaviour at the moment of bird strike must be extraordinary in the sense of necessity to maintain total safety of flight. Meteorological conditions unusual with birds’ behaviour and with operation of the concerned flight

EXTRAORDINARY CIRCUMSTANCES MITIGATING CIRCUMSTANCES & BIRDS’ BEHAVIOUR

WILFUL MISCONDUCT = as intentional performance of an act knowing that its performance will probably result in damage, or as intentional performance of an act in a manner that implies reckless disregard of its probable consequences NEGLIGENCE = failure to take reasonable, ordinary care

INSURANCE ASPECT The insurance covers aircraft operators, as well as airport operators. Lloyd’s building London Bird strike risks are within frame of aircraft operator property insurance, and of airport liability insurance.

Kinds of insurances: • Property insurance (airport operator; aircraft; goods and • baggage – against loss or damage); • Persons insurance (airport operator, passengers and crew on board of aircraft – against accidents); • Aircraft operator liability insurance (passengers and third persons damages; goods); • Airport liability insurance.

PROPOSALS & SUGESTIONS • To acknowledge that bird hazards exist; • To assess legal implications of airport bird hazards; • To assign responsibility and delegate authorityfor developing, initiating and maintaining ofeffective bird management program; • To identify sources of technical assistance;

To identify bird hazards; • To acquire knowledge about bird management program and to exercise it periodically; • To allocate resources, funds, and personnel; • To develop routine training programs;

To initiate bird management program; • To develop qualitative control procedures; • To maintain daily records of bird management program; • To evaluate bird management program; • To establish positive bird strike reporting procedure.

C O N C L U S I O N - Liability for damages caused by bird strikes within airport responsibility area represents the risk that, obviously, brings into question the whole system of measures predicted for prevention of such events.

- From the aspect of presumed liability the person in chargeisobliged to prove that, in definite circumstances, allrequired actions were undertakenin order to avoiddefinite event.

- Every singular case of wildlife strike represents the possibility for evaluation of undertaking of protectionmeasures, and it brings all participants in air traffic into question whether an airport does everything predicted in safety instructions or similar acts in order to avoid wildlife strikes.

- Every act and action of an airport referred to application of safety measures must be entered in respective official records, in order to enable its eventual identification and demonstration. Contrariwise, even on the assumption that safety measures are respected, there exists a practical possibility that an airport will be charged for damage.

BIRD STRIKE COMMITTEE CROATIA Hrvatski English www.caacro.hr/birdstrike

Thank you very much for your attention Ante Matijaca

2nd ANNUAL ASSEMBLY OF THE WALA